28 U.S.C. § 1346 — United States as defendant

Page 374 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1345 be commenced, where in it appears that the sole question touching the title to office arises out of denial of the right to vote, to any citizen offer- ing to vote, on account of race, color or previous condition of servitude. The jurisdiction under this section shall ex- tend only so far as to determine the rights of the parties to office by reason of the denial of the right, guaranteed by the Constitution of the United States and secured by any law, to enforce the right of citizens of the United States to vote in all the States. (June 25, 1948, ch. 646, 62 Stat. 932.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 41(15) (Mar. 3, 1911, ch. 231, § 24, par. 15, 36 Stat. 1092). Words ‘‘civil action’’ were substituted for ‘‘suits,’’ in view of Rule 2 of the Federal Rules of Civil Procedure. Words ‘‘United States Senator’’ were added, as no reason appears for including Representatives and ex- cluding Senators. Moreover, the Seventeenth amend- ment, providing for the popular election of Senators, was adopted after the passage of the 1911 law on which this section is based. Changes were made in phraseology. § 1345. United States as plaintiff Except as otherwise provided by Act of Con- gress, the district courts shall have original ju- risdiction of all civil actions, suits or pro- ceedings commenced by the United States, or by any agency or officer thereof expressly author- ized to sue by Act of Congress. (June 25, 1948, ch. 646, 62 Stat. 933.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 41(1) (Mar. 3, 1911, ch. 231, § 24, par. 1, 36 Stat. 1091; May 14, 1934, ch. 283, § 1, 48 Stat. 775; Aug. 21, 1937, ch. 726, § 1, 50 Stat. 738; Apr. 20, 1940, ch. 117, 54 Stat. 143). Other provisions of section 41(1) of title 28, U.S.C., 1940 ed., are incorporated in sections 1331, 1332, 1341, 1342, 1354, and 1359 of this title. Words ‘‘civil actions, suits or proceedings’’ were sub- stituted for ‘‘suits of a civil nature, at common law or in equity’’ in view of Rules 2 and 81(a)(7) of the Federal Rules of Civil Procedure. Word ‘‘agency’’ was inserted in order that this sec- tion shall apply to actions by agencies of the Govern- ment and to conform with special acts authorizing such actions. (See definitive section 451 of this title.) The phrase ‘‘Except as otherwise provided by Act of Congress,’’ at the beginning of the section was inserted to make clear that jurisdiction exists generally in dis- trict courts in the absence of special provisions confer- ring it elsewhere. Changes were made in phraseology. § 1346. United States as defendant (a) The district courts shall have original ju- risdiction, concurrent with the United States Court of Federal Claims, of: (1) Any civil action against the United States for the recovery of any internal-rev- enue tax alleged to have been erroneously or illegally assessed or collected, or any penalty claimed to have been collected without au- thority or any sum alleged to have been exces- sive or in any manner wrongfully collected under the internal-revenue laws; (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, except that the dis- trict courts shall not have jurisdiction of any civil action or claim against the United States founded upon any express or implied contract with the United States or for liquidated or un- liquidated damages in cases not sounding in tort which are subject to sections 7104(b)(1) and 7107(a)(1) of title 41. For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Serv- ice, Navy Exchanges, Marine Corps Exchanges, Coast Guard Exchanges, or Exchange Councils of the National Aeronautics and Space Admin- istration shall be considered an express or im- plied contract with the United States. (b)(1) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of prop- erty, or personal injury or death caused by the negligent or wrongful act or omission of any em- ployee of the Government while acting within the scope of his office or employment, under cir- cumstances where the United States, if a private person, would be liable to the claimant in ac- cordance with the law of the place where the act or omission occurred. (2) No person convicted of a felony who is in- carcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody with- out a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18). (c) The jurisdiction conferred by this section includes jurisdiction of any set-off, counter- claim, or other claim or demand whatever on the part of the United States against any plain- tiff commencing an action under this section. (d) The district courts shall not have jurisdic- tion under this section of any civil action or claim for a pension. (e) The district courts shall have original ju- risdiction of any civil action against the United States provided in section 6226, 6228(a), 7426, or 7428 (in the case of the United States district court for the District of Columbia) or section 7429 of the Internal Revenue Code of 1986. (f) The district courts shall have exclusive original jurisdiction of civil actions under sec- tion 2409a to quiet title to an estate or interest in real property in which an interest is claimed by the United States. (g) Subject to the provisions of chapter 179, the district courts of the United States shall have exclusive jurisdiction over any civil action commenced under section 453(2) of title 3, by a covered employee under chapter 5 of such title. (June 25, 1948, ch. 646, 62 Stat. 933; Apr. 25, 1949, ch. 92, § 2(a), 63 Stat. 62; May 24, 1949, ch. 139, Page 375 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1346 § 80(a), (b), 63 Stat. 101; Oct. 31, 1951, ch. 655, § 50(b), 65 Stat. 727; July 30, 1954, ch. 648, § 1, 68 Stat. 589; Pub. L. 85–508, § 12(e), July 7, 1958, 72 Stat. 348; Pub. L. 88–519, Aug. 30, 1964, 78 Stat. 699; Pub. L. 89–719, title II, § 202(a), Nov. 2, 1966, 80 Stat. 1148; Pub. L. 91–350, § 1(a), July 23, 1970, 84 Stat. 449; Pub. L. 92–562, § 1, Oct. 25, 1972, 86 Stat. 1176; Pub. L. 94–455, title XII, § 1204(c)(1), title XIII, § 1306(b)(7), Oct. 4, 1976, 90 Stat. 1697, 1719; Pub. L. 95–563, § 14(a), Nov. 1, 1978, 92 Stat. 2389; Pub. L. 97–164, title I, § 129, Apr. 2, 1982, 96 Stat. 39; Pub. L. 97–248, title IV, § 402(c)(17), Sept. 3, 1982, 96 Stat. 669; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516; Pub. L. 104–134, title I, § 101[(a)] [title VIII, § 806], Apr. 26, 1996, 110 Stat. 1321, 1321–75; renumbered title I, Pub. L. 104–140, § 1(a), May 2, 1996, 110 Stat. 1327; Pub. L. 104–331, § 3(b)(1), Oct. 26, 1996, 110 Stat. 4069; Pub. L. 111–350, § 5(g)(6), Jan. 4, 2011, 124 Stat. 3848; Pub. L. 113–4, title XI, § 1101(b), Mar. 7, 2013, 127 Stat. 134.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 41(20), 931(a), 932 (Mar. 3, 1911, ch. 231, § 24, par. 20, 36 Stat. 1093; Nov. 23, 1921, ch. 136, § 1310(c), 42 Stat. 311; June 2, 1924, ch. 234, § 1025(c), 43 Stat. 348; Feb. 24, 1925, ch. 309, 43 Stat. 972; Feb. 26, 1926, ch. 27, §§ 1122(c), 1200, 44 Stat. 121, 125; Aug. 2, 1946, ch. 753, §§ 410(a), 411, 60 Stat. 843). Section consolidates provisions of section 41(20) con- ferring jurisdiction upon the district court, in civil ac- tions against the United States, with the first sentence of section 931(a) relating to jurisdiction of the district courts in tort claims cases, and those provisions of sec- tion 932 making the provisions of said section 41(20), re- lating to counterclaim and set-off, applicable to tort claims cases, all of title 28, U.S.C., 1940 ed. Provision in section 931(a) of title 28, U.S.C., 1940 ed., for trials without a jury, is incorporated in section 2402 of this revised title. For other provisions thereof, see Distribution Table. Words ‘‘commencing an action under this section’’ in subsec. (c) of this revised section cover the provision in section 932 of title 28, U.S.C., 1940 ed., requiring that the same provisions ‘‘for counterclaim and set-off’’ shall apply to tort claims cases brought in the district courts. The phrase in section 931(a) of title 28, U.S.C., 1940 ed., ‘‘accruing on and after January 1, 1945’’ was omit- ted because executed as of the date of the enactment of this revised title. Provisions in section 41(20) of title 28, U.S.C., 1940 ed., relating to time for commencing action against United States and jury trial constitute sections 2401 and 2402 of this title. (See reviser’s notes under said sections.) Words in section 41(20) of title 28, U.S.C., 1940 ed., ‘‘commenced after passage of the Revenue Act of 1921’’ were not included in revised subsection (a)(1) because obsolete and superfluous. Actions under this section in- volving erroneous or illegal assessments by the col- lector of taxes would be barred unless filed within the 5-year limitation period of section 1113(a) of the Rev- enue Act of 1926, 44 Stat. 9, 116. (See United States v. A. S. Kreider Co., 1941, 61 S.Ct. 1007, 313 U.S. 443, 85 L.Ed. 1447.) Words in section 41(20) of title 28, U.S.C., 1940 ed., ‘‘if the collector of internal revenue is dead or is not in of- fice at the time such action or proceeding is com- menced’’ were omitted. The revised section retains the language of section 41(20) of title 28, U.S.C., 1940 ed., with respect to actions against the United States if the collector is dead or not in office when action is commenced, and consequently maintains the long existing distinctions in practice be- tween actions against the United States and actions against the collector who made the assessment or col- lection. In the latter class of actions either party may demand a jury trial while jury trial is denied in actions against the United States. See section 2402 of this title. In reality all such actions are against the United States and not against local collectors. (See Lowe v. United States, 1938, 58 S.Ct. 896, 304 U.S. 302, 82 L.Ed. 1362; Manseau v. United States, D.C.Mich. 1943, 52 F.Supp. 395, and Combined Metals Reduction Co. v. United States, D.C.Utah 1943, 53 F.Supp. 739.) The revised subsection (c)(1) omitted clause: ‘‘but no suit pending on the 27th day of June 1898 shall abate or be affected by this provision,’’ contained in section 41(20) of title 28, U.S.C., 1940 ed., as obsolete and super- fluous. The words contained in section 41(20) of title 28, U.S.C., 1940 ed., ‘‘claims growing out of the Civil War, and commonly known as ‘war-claims,’ or to hear and determine other claims which had been reported ad- versely prior to the 3d day of March 1887 by any court, department, or commission authorized to have and de- termine the same,’’ were omitted for the same reason. The words ‘‘in a civil action or in admiralty,’’ in sub- section (a)(2), were substituted for ‘‘either in a court of law, equity, or admiralty’’ to conform to Rule 2 of the Federal Rules of Civil Procedure. Words in section 41(20) ‘‘in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admi- ralty, if the United States were suable’’ were omitted from subsection (a)(2) of this revised section as unnec- essary. See reviser’s note under section 1491 of this title. For jurisdiction of The Tax Court to review claims for refunds of processing taxes collected under the un- constitutional Agriculture Adjustment Act, see sec- tions 644–659 of title 7, U.S.C., 1940 ed., Agriculture, and the 1942 Revenue Act, Act Oct. 21, 1942, ch. 610, title V, § 510(a), (c), (d), 56 Stat. 667. (See, also, Lamborn v. United States, C.C.P.A. 1939, 104 F.2d 75, certiorari de- nied 60 S.Ct. 115, 308 U.S. 589, 84 L.Ed. 493.) See, also, reviser’s note under section 1491 of this title as to jurisdiction of the Court of Claims in suits against the United States generally. For venue of ac- tions under this section, see section 1402 of this title and reviser’s note thereunder. Minor changes were made in phraseology. SENATE REVISION AMENDMENT The provision of title 28, U.S.C., § 932, which related to application of the Federal Rules of Civil Procedure, were originally set out in section 2676 of this revised title, but such section 2676 was eliminated by Senate amendment. See 80th Congress Senate Report No. 1559, amendment No. 61. 1949 ACT This section corrects typographical errors in section 1346(a)(1) of title 28, U.S.C., and in section 1346(b) of such title. Editorial Notes REFERENCES IN TEXT Sections 6226, 6228(a), 7426, 7428, and 7429 of the Inter- nal Revenue Code of 1986, referred to in subsec. (e), are classified to sections 6226, 6228(a), 7426, 7428, and 7429, respectively, of Title 26, Internal Revenue Code. Sec- tion 6226 of Title 26 was repealed and reenacted by Pub. L. 114–74, title XI, § 1101(a), (c)(1), Nov. 2, 2015, 129 Stat. 625, 630, and as so reenacted no longer relates to judi- cial review, see section 6234 of Title 26. Section 6228 of Title 26 was repealed by Pub. L. 114–74, title XI, § 1101(a), Nov. 2, 2015, 129 Stat. 625. AMENDMENTS 2013—Subsec. (b)(2). Pub. L. 113–4 inserted ‘‘or the commission of a sexual act (as defined in section 2246 of title 18)’’ before period at end. Page 376 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1347 2011—Subsec. (a)(2). Pub. L. 111–350 substituted ‘‘sec- tions 7104(b)(1) and 7107(a)(1) of title 41’’ for ‘‘sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978’’. 1996—Subsec. (b). Pub. L. 104–134 designated existing provisions as par. (1) and added par. (2). Subsec. (g). Pub. L. 104–331 added subsec. (g). 1992—Subsec. (a). Pub. L. 102–572 substituted ‘‘United States Court of Federal Claims’’ for ‘‘United States Claims Court’’. 1986—Subsec. (e). Pub. L. 99–514 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’. 1982—Subsec. (a). Pub. L. 97–164 substituted ‘‘United States Claims Court’’ for ‘‘Court of Claims’’. Subsec. (e). Pub. L. 97–248 substituted ‘‘section 6226, 6228(a), 7426, or’’ for ‘‘section 7426 or section’’. 1978—Subsec. (a)(2). Pub. L. 95–563 excluded from the jurisdiction of district courts civil actions or claims against the United States founded upon any express or implied contract with the United States or for damages in cases not sounding in tort subject to sections 8(g)(1) and 10(a)(1) of the Contract Disputes Act of 1978. 1976—Subsec. (e). Pub. L. 94–455 inserted ‘‘or section 7429’’ and ‘‘or section 7428 (in the case of the United States district court for the District of Columbia)’’, after ‘‘section 7426’’. 1972—Subsec. (f). Pub. L. 92–562 added subsec. (f). 1970—Subsec. (a)(2). Pub. L. 91–350 specified that the term ‘‘express or implied contracts with the United States’’ includes express or implied contracts with the Army and Air Force Exchange Service, Navy Ex- changes, Marine Corps Exchanges, Coast Guard Ex- changes, or Exchange Councils of the National Aero- nautics and Space Administration. 1966—Subsec. (e). Pub. L. 89–719 added subsec. (e). 1964—Subsec. (d). Pub. L. 88–519 struck out provisions which prohibited district courts from exercising juris- diction of civil actions or claims to recover fees, salary, or compensation for official services of officers or em- ployees of the United States. 1958—Subsec. (b). Pub. L. 85–508 struck out reference to District Court for Territory of Alaska. See section 81A of this title which establishes a United States Dis- trict Court for the State of Alaska. 1954—Subsec. (a)(1). Act July 30, 1954, struck out lan- guage imposing jurisdictional limitation of $10,000 on suits to recover taxes. 1951—Subsec. (d). Act Oct. 31, 1951, inserted references to ‘‘claim’’ and ‘‘employees’’. 1949—Subsec. (a)(1). Act May 24, 1949, § 80(a), inserted ‘‘, (i) if the claim does not exceed $10,000 or (ii)’’. Subsec. (b). Acts Apr. 25, 1949, and May 24, 1949, § 80(b), made a technical change to correct ‘‘chapter 173’’ to read ‘‘chapter 171’’, and inserted ‘‘on and after January 1, 1945’’ after ‘‘for money damages’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–331 effective Oct. 1, 1997, see section 3(d) of Pub. L. 104–331, set out as an Effec- tive Date note under section 1296 of this title. EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–248 applicable to partner- ship taxable years beginning after Sept. 3, 1982, with provision for the applicability of the amendment to any partnership taxable year ending after Sept. 3, 1982, if the partnership, each partner, and each indirect part- ner requests such application and the Secretary of the Treasury or his delegate consents to such application, see section 407(a)(1), (3) of Pub. L. 97–248, set out as a note under section 702 of Title 26, Internal Revenue Code. Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–563 effective with respect to contracts entered into 120 days after Nov. 1, 1978 and, at the election of the contractor, with respect to any claim pending at such time before the contracting offi- cer or initiated thereafter, see section 16 of Pub. L. 95–563, Nov. 1, 1978, 92 Stat. 2391, formerly set out as an Effective Date note under section 601 of former Title 41, Public Contracts. EFFECTIVE DATE OF 1970 AMENDMENT Pub. L. 91–350, § 2, July 23, 1970, 84 Stat. 449, provided that: ‘‘(a) In addition to granting jurisdiction over suits brought after the date of enactment of this Act [July 23, 1970], the provisions of this Act [amending this sec- tion and section 1491 of this title and section 724a of former Title 31, Money and Finance] shall also apply to claims and civil actions dismissed before or pending on the date of enactment of this Act if the claim or civil action is based upon a transaction, omission, or breach that occurred not more than six years prior to the date of enactment of this Act [July 23, 1970]. ‘‘(b) The provisions of subsection (a) of this section shall apply notwithstanding a determination or judg- ment made prior to the date of enactment of this Act that the United States district courts or the United States Court of Claims did not have jurisdiction to en- tertain a suit on an express or implied contract with a nonappropriated fund instrumentality of the United States described in section 1 of this Act.’’ EFFECTIVE DATE OF 1966 AMENDMENT Pub. L. 89–719, title II, § 203, Nov. 2, 1966, 80 Stat. 1149, provided that: ‘‘The amendments made by this title [amending this section and sections 1402 and 2410 of this title] shall apply after the date of the enactment of this Act [Nov. 2, 1966].’’ EFFECTIVE DATE OF 1958 AMENDMENT Amendment by Pub. L. 85–508 effective Jan. 3, 1959, on admission of Alaska into the Union pursuant to Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat. c16, as required by sections 1 and 8(c) of Pub. L. 85–508, see notes set out under section 81A of this title and preceding section 21 of Title 48, Territories and Insular Possessions. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, set out as a note under section 542 of Title 6. TERMINATION OF UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE CANAL ZONE For termination of the United States District Court for the District of the Canal Zone at end of the ‘‘transi- tion period’’, being the 30-month period beginning Oct. 1, 1979, and ending midnight Mar. 31, 1982, see Para- graph 5 of Article XI of the Panama Canal Treaty of 1977 and sections 2101 and 2201 to 2203 of Pub. L. 96–70, title II, Sept. 27, 1979, 93 Stat. 493, formerly classified to sections 3831 and 3841 to 3843, respectively, of Title 22, Foreign Relations and Intercourse. § 1347. Partition action where United States is joint tenant The district courts shall have original juris- diction of any civil action commenced by any